I would like to pay tribute Inkosi Albert Luthuli who was my leader and mentor during his lifetime. I first saw him at the Palace of my late uncle Prince Mshiyeni ka Dinuzulu who acted as Regent for the Zulu Nation, during the interregnum. I admired this educated and sophisticated Inkosi who was just one Inkosi amongst his peers "AmaKhosi" of the Kingdom of KwaZulu the majority of whom, unlike him, were not even literate. His humility in their midst really impressed me more than any of his equally admirable qualities.

Later I was to know Inkosi Albert Luthuli more closely as the elected Inkosi of what was called "the Amakholwa" tribe of Groutville Mission Reserve near KwaDukuza. This closeness took place after my rustication from the University of Fort Hare after a demonstration as students against the then Governor General of the Republic of South Africa Mr. G Brand van Zyl. I stayed in Durban after my rustication where arrangements were made through Senator Dr. Edgar Brookes for me to attend some lectures at the University of Natal Non-European Section, at Sastri College, in order to be able to write my Fort Hare exam papers that year, in Durban, at the University of Natal.

During that time there was an election for the President of the ANC in the Province of Natal, as it was known then. Mr. Allison George Champion was the incumbent President. We attended the meeting with some of my friends with whom we were civil servants at the Stanger Street office of the Native Commissioner. Instead of conducting the election through ballots or by a show of hands. Mr. Champion merely said:

"Those who support Champion this side of the hall and those who support Luthuli on the other side of the Hall"

My friends and I went to the Luthuli side of the Hall. Mr. Champion did not even check on the membership of the ANC for those who were to vote. Apparently he had packed the Hall with his supporters and was hoping to win the day that way. It was not to be for those on the Luthuli side of the Hall won the day and that is how Inkosi Albert Luthuli became the President of the ANC in the Province of Natal. Almost daily I would stop at Lakhani Chambers in Grey Street in Durban where the ANC office was located.

I got to know closely someone I had admired for so long - an Inkosi who gave up what was a lucrative post as a Teacher at Adams College to become an Inkosi to serve his people in the rural Community of Groutville Mission. He had founded the Small Cane Farmers Association, for the people of the Province. After I returned to my home in Mahlabathini I was in constant touch with him even when later on the Government chose to ban him when he was then the President of the ANC in South Africa. I had the honour of being asked by the ANC in exile and his family to deliver the funeral oration on behalf of Black South Africa at his funeral. It is a great honour for me to deliver talk as part of the Luthuli Memorial Lecture to honour the memory of this great leader.

Most recently Traditional Leaders of KwaZulu Natal have met with municipal councilors to design and define modality of co-existence. Effectively, we are developing a form of cohabitation between two institutions. There is full recognition that traditional leadership has an essential contribution to make, both in respect of good governance and development. There cannot be widespread and equitable development without the contribution of traditional leadership. The present dimension of cohabitation between traditional leadership and municipalities, which is being explored in KwaZulu Natal, is based on municipalities involving traditional authorities in their exercise of municipal functions. For instance, it has been suggested that when a municipality intends to adopt a bylaw, it refers its draft to a traditional authority for comments. Similarly, before issuing authorization for a development plan, or zoning approval on traditional land, the municipality receives the binding opinion of the relevant traditional authority. Municipalities have been encouraged to adopt bylaws to make provision for these additional consultative stages and processes within their existing procedures that define the exercise of their powers and the performance of their function. Therefore, by virtue of such bylaws, the coordination with traditional authorities and their involvement in the exercise of municipal powers will have an adequate legal framework.

This new initiative is moving into uncharted territories and will undoubtedly present a number of difficulties. However, it is a necessary one, the important and cogent nature of which can only be fully understood by appreciating the lengthy background that characterised the thorny issue of the conflict between the powers and functions of municipalities, and those of traditional authorities. I feel that it is imperative for me on this occasion to place on record the various stages of this long saga, in the hope that future historians may be able to fully research its several aspects. Its starting point lies in the consideration that before 1994 traditional and regional authorities were the primary and local government of people in rural areas. For instance, in terms of the KwaZulu Natal legislation, the Amakhosi and Iziphakanyiswa Act, regional authorities are mandated to exercise all the powers and functions which the present Part B of schedules 4 and 5 of our Constitution now ascribes to municipalities. In addition to the powers specifically listed in respect of regional authorities, traditional authorities had a much broader list of powers relating to the overall governance of traditional communities. In this two-tier system of government, regional authorities exercised local government powers, especially those relating to the bulk distribution of service, while traditional authorities dealt with local government powers relating to the reticulation of services and a host of innumerable other functions, defined by indigenous and customary law and ranging from the administration and use of land to the resolution of conflicts within the community, or matters relating to stray animals. Effectively, one could hardly define the limits of the powers and functions of traditional authorities, which could extend to all matters with exception of those which legislation would ascribe to other bodies or entities.

There has not been sufficient understanding or appreciation of the underlying reality of a traditional community, which explains the function exercised by a traditional authority. A traditional community is a specific model of societal organization defined by indigenous and customary law, and by the governance, which takes place through the institution of traditional leadership. Traditional leadership has the function of enabling the self-governance of a community in terms of indigenous and customary law, and on the basis of consensus driven procedures. Traditional leaders have been trained since time immemorial not to impose their views, or making decisions the way a judge would or in terms of their own views and policies. A traditional leader is trained to be the catalyst of consensus, which enables a community or the affected interest, to come to their own decision. Effectively, a traditional leader is a grand mediator.

Traditional leadership is the pinnacle of both a system of governance and the overall rules organizing and defining daily life in a community, including family law, commercial transactions, use of the land and all that which defines rights and obligations in an organized society. While municipalities only deal with a limited number of matters, which relate to the governance of a society, rather than the actual structuring and organization of a community, traditional authorities used to deal with all the matters, which in western society are dealt with through common law. It must be noted that a traditional leader always operates and decides within his traditional council and that often indigenous and customary law adopts a notion of subsidiary, in which decisions which can be taken at the family level are left at that level, those which can be taken at the level of the headman or induna are taken at that level and so on and so forth.

Against this background, when the process of negotiations for a new democratic dispensation began in the Conference for a Democratic South Africa (CODESA) in December 1991, traditional leaders tabled the concern that the new Constitution would need to recognize their powers and functions. The reference to powers and functions related exactly to the functions of governance of communities, and the powers that they exercised within a traditional society. Traditional leaders put forward their concerns and demands, clearly indicating that they were not concerned about themselves as individuals, but rather about the institution of traditional leadership, which is inclusive of both traditional leaders and traditional authorities. For many months the issue of traditional leadership was not dealt with and was postponed during the negotiations, and it was finally addressed only in February 1993 when the negotiating council accepted the views of traditional leaders. This process ended in the drafting of Chapter 11 of the Interim Constitution, which was dedicated to traditional authorities, rather than traditional leaders, in recognition that what was protected was the institution of traditional leadership as a system of governance at the local level.

Section 181 of the Interim Constitution enabled traditional authorities to continue to remain the primary local government of traditional communities, both in terms of the existing laws, and indigenous and customary law. However, this was subject to the power of Parliament to do away with them. Therefore, their position was not entrenched, but merely allowed to continue. Section 182 of the Constitution made provision for traditional leaders to be ex-officio members of municipal councils with jurisdiction in this area. Traditional leaders were very dissatisfied with these provisions as they correctly saw that they did not entrench their powers and functions. They merely created a situation of open possibilities, both in terms of their survival or obliteration. To address this concern, the negotiation process tried to abridge the powers of the Constitutional Assembly, requiring the final Constitution to give traditional leaders more than the interim constitution did.

The Constitution's Principle Xiii.1 stated that "the institution status and role of traditional leadership shall be recognized and protected" in the final Constitution. During their presentation traditional leaders specifically wanted the words "power and functions" included in this language, but the Technical Committee told them that such addition was unnecessary, because in law the word "status" included power and functions. However, in one of the great betrayals of traditional leadership, when the final Constitution was certified, the Constitutional Court, did not object to the failure of recognizing and protecting the powers and functions of traditional leadership, precisely on the grounds that Constitutional Principle xiii.1 had entrenched the existence, status and role of traditional leadership, but not their powers and functions, and accepted that the final Constitution had effectively obliterated their powers and functions. This was a despicable act of sophistry as one could not understand how the "role" of traditional leadership could be protected if their powers and functions were not.

In the end, the final Constitution ascribed all powers of local government exclusively to municipalities, requiring the whole of our territory to be subjected to wall-to-wall municipal government. This obliterated the local government powers of traditional and regional authorities. However, this obvious conclusion was denied for many years by the Minister for Local Government, and the various policy documents expressed by his Department, and what remains one of the darkest pages of government led deception in our new Republic. After April 1994, local government was limited to the previously white areas and the original Local Government Transition Act

(LGTA) did not apply to rural areas. Throughout 94 and 95 an intense debate developed about the future of local government in rural areas, the outcome of this debate was to shape the final provisions of the Constitution, which was then being drafted by the Constitutional Assembly. Capitalizing on the two tier employed in KwaZulu Natal consisting of regional and traditional authorities, the amakhosi of KwaZulu Natal put forward the proposal of a two tier model in which a municipal council at the district level could operate as an overarching municipality, while traditional authorities could continue to function at the local level.

The notion of this two-tier model was accepted, but no provision was made for the recognition of traditional and regional authorities, and the Local Government Transition Act (LGTA) was set to be amended accordingly. This created a potentially explosive conflict between the transitional councils, which were the municipalities of the time, and the traditional authorities. In order to defuse this conflict the notion of "remaining areas" was introduced to enable traditional and regional authorities to continue to operate as the de facto local government of traditional communities, wherever a transitional council was not established at the local level. Section 181 of the interim Constitution provided the backing for this arrangement which, however, continued after the coming into force of the final Constitution in January, 1997 and in spite of its provisions, lasting until the December 2000 local government elections. However, the obvious inconsistency with the Constitution made this untenable in spite of the government campaign, which for years tried to deny that the conflict existed between the local government powers of traditional institutions and those of municipalities.

Government launched a green and white paper process for legislation designing a new system of local government. Both documents carefully avoided dealing with traditional authorities, limiting themselves to the laconic statement that a conflict between the powers of municipalities, and those of traditional authorities, had to be dealt with at a different juncture and level. Traditional leaders participated in all stages of this process, making numerous submissions for a two-tier level of government, in which municipalities and traditional authorities could share local government powers. It was pointed out time and again that municipalities, being creatures of state, could only operate and apply statutory provisions. They could not operate in terms of and apply indigenous and customary law. Therefore, their introduction would disintegrate an entire system of societal organization.

One can give an example, which could be multiplied thousand fold. In terms of indigenous law the owner of a garden, aggrieved by the damage caused by a stray cow, has the power of impounding that cow and bring it to the traditional authority, from where it will be released only when the owner of the cow has not only paid a fee to the traditional authority, but has also paid for the damage caused to the garden. However, in terms of the Pound Act, a municipality can only impound a cow and release it once the owner has paid the fee to the pound. However, the municipality cannot force the owner of the cow to pay damages, which is a matter to be dealt through the Court system. In the everyday dynamics of community, this means that the grievance of the owner of the garden is not satisfied which on occasions may result in violence or other forms of retaliation, thereby undermining the fibre of the community. As I said, one could multiply this example, a thousand times, which shows how an entire system of laws and custom is undermined by the foreign nature of municipal structures.

Traditional leaders highlighted this contradiction during their submission to the Constitutional Assembly in May 1995, when they submitted a Manifesto for a harmonious system of local government. They made similar submissions throughout the green and white paper process on local government and I, myself, made several such submissions. However, they were all ignored in a manner, which still carries a profound sense of grievance for all traditional leaders. In fact, time and again we received the assurance that the problem did not exist and that the powers and functions of traditional leaders would be protected. When the new legislation was adopted, which obviously betrayed such promises and expectations, traditional leaders took the matter up with the President in a set of extensive meetings and consultations. In May 2000, this resulted in the President promising in writing that the powers and functions of traditional leaders would not be negatively affected and, if affected, they would be restored.

To counter the denial by Government of the basic facts of the law on the matter, traditional leaders commissioned an extensive senior counsel analysis, highlighting how the coming into operation of municipalities would obliterate the bulk of powers and functions of municipalities, which dealt with local government.

In reaction, when speaking in Parliament in October 2000, the President reiterated the promise that the powers of traditional leadership would not be adversely affected and if affected would be fully restored to the pre-1994 situation. Because of the impending local government elections, he had previously established a process to see how the local government legislation could be amended. He had promised a two-stage process in which interim legislation will be adopted before the elections, to avoid the obliteration of the local government powers of traditional leadership and the second stage after the elections, to create a more certain framework for the exercise of such powers. A Technical Committee was established between traditional leaders and government, which unanimously recommended a solution to the problem, along the basis of a two-tier system of government, in which traditional and regional authorities would operate at the local level under a district municipality. This proposal became known as Annexure E however, when Annexure E was submitted to the President, it was rejected on political and policy grounds. This created a crisis leading to additional negotiations held against the backdrop of the unwillingness of traditional leaders to participate in the December 2000 elections.

Cabinet appointed a Committee of Ministers chaired by the Deputy President, which was to deal with this crisis. After lengthy negotiations a settlement was reached on November 30, 2000 in a document signed by the Deputy President, on behalf of his committee and the coalition of traditional leaders, which carried the commitment of Government to amend Chapter 7 and 12 of the Constitution in order to restore the local government powers of traditional authorities. Almost four years later no step whatsoever has been taken to fulfill this formal promise, while, from a legal viewpoint, all local government powers and functions of traditional leadership have been obliterated, even though the Government has not had the courage and honesty of openly repealing the laws which still mention them such as the KwaZulu Natal Amakhosi and Iziphakanyiswa Act.

For this reason, it is essential that government and municipalities alike concentrate on reviewing all bylaws to determine where and how a role for traditional authorities can be designed and protected. This role could be both consultative and decision-making, on the basis of delegation. Forces must now be joined to design innovative technical solutions. The coming into force of the communal land rights act will give greater momentum to the necessity of developing these processes. In fact, in terms of this Act, the administration of land may remain within traditional councils. The administration of land and the determination of land use is an essential component of many municipal functions and unless greater coordination exists between municipalities and traditional councils, local governments could be brought to a standstill. For instance, it would be difficult for municipalities to develop zoning and land planning functions without the concurrence of the traditional council. There are going to be great difficulties in the implementation of this Act, which will also call for greater cooperation between municipalities and traditional authorities. In fact, the traditional council contemplated in that Act is the one referred to in the National Framework for Traditional Leadership Act, which must include a forty percent elected component. However, the Act makes no provision for implementing regulations, and to this day there is no clarity on how such elections are to be held and under what law. Such law could be a provincial one but, perhaps, could be a municipal bylaw of a district municipality. In any case, it seems obvious that municipalities will need to provide their support in the holding of such elections.

As I indicated in my opening, we are moving into an uncharted territory. If we are to succeed in our endeavours, the most important tool we need is commonality of intents and good faith. Things can no longer continue on the basis of ambivalent policies where lip service is paid to the notion of protecting the role and status of traditional leadership, while in fact undermining it. It is essential that municipalities bring about this change of attitude. Their relationship with traditional leadership must become real, substantial and serious. If this change of heart comes about, I have no doubt that we will find ways and means to solve any problems now confronting us. If it does not come about, no matter what we do and say, the relationship between traditional leadership and municipalities is bound to fail. We must remember that even though there may be two layers of government and two different types of institutions, there is only one underlying constituency. Our people demand that both the traditional leaders and their elected municipal councils work together and do so in good faith, because they both carry the equal responsibility of serving their needs and fulfilling their aspirations.